Rahul Berry, Ludhiana V. ACIT, Ludhiana

MA 193/CHANDI/2018

AI Insights

The case involves a miscellaneous application filed by Shri Rahul Berry, the proprietor of Berry Cotton Industries, against an ex-parte order passed by the Income Tax Appellate Tribunal, Chandigarh. The original appeal was dismissed due to the non-appearance of the assessee on 16/11/2016, which was attributed to the non-receipt of the hearing notice. The assessee argued that the non-appearance was unintentional and supported his claim with affidavits and correspondence with the Tribunal. The Tribunal, after considering the circumstances and the legal precedent cited, decided to restore the appeal to be adjudicated on its merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300483 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-08-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2018
• Other Referred Cases: Wood Workers And Packing Case Works v. The State of Punjab And Anr., (1971) 28 STC 291 (P&H)
• Laws Referred To: Income Tax Act, 1961, Income Tax (Appellate Tribunal) Rules, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MONVIKA KAUSHAL
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH “B”, CHANDIGARH BEFORE: SHRI. AAKASH DEEP JAIN, VP & SHRI. VIKRAM SINGH YADAV, AM Miscellaneous Application No. 193/Chd/2018 (In ITA No. 451/Chd/2016) Assessment Year : 2011-12 Shri Rahul Berry Prop. Berry Cotton Industries, B-XIII-1661, Karimpura Chowk, Ludhiana Vs. The ACIT Circle –II Ludhiana PAN NO: ABKPB0070A Appellant Respondent Assessee by : Ms. Monvika Kaushal, C.A Revenue by : Shri Dharamvir, JCIT, Sr. D.R Date of Hearing : 18/08/2023 Date of Pronouncement : 24/08/2023 Order PER VIKRAM SINGH YADAV, A.M. : The present miscellaneous application has been filed by the Assessee against the order passed by the Coordinate Bench dt. 16/11/2016 in ITA No. 451/Chd/2016 for Assessment Year 2008-09. 2. In the said Miscellaneous Application, it has been stated as under; “Subject: Miscellaneous Application u/s 24 of the Income Tax (Appellate Tribunal) Rules, 1963 praying for the restoration of Appeal No.451/Chdi/2016 for the AY 2008-09. Sirs, The assessee humbly submits as under: 1. This Hon'ble Bench through order dt. 16.11.2016 Pg 4 To 6 dismissed the appeal of the assessee for the reason of non- appearance. 2. The assessee challenged the order of CIT (A) dt. 29.02.2016 before this Hon'ble Bench by instituting an appeal u/s 253 of the Act, 1961 on dt. 27.04.2016 through registered post and the first listing of the case was fixed for hearing for 08.09.2016 and was adjourned to 16.11.2016. 2 3. As per the order dt. 16.11.2016 (supra) , none appeared on behalf of the assessee nor any application was moved for adjournment whereas the said notice not came into the knowledge of the assessee since the said notice was not received/ delivered to the assessee by the Post Office department. 4. a) The reason for non-appearance of the assessee on 16.11.2016 is due to the reason that assessee was not having any knowledge qua the fixation of the case on 16.11.2016 since he did not receive any notice of hearing at the address mentioned for communication in Form 36. In support of his pleading the affidavit of the assessee is at Pg 3. b) Pertinent to state that the non-appearance the assessee on the said date was inadvertent and unintentional and assessee would not be benefited in any way by not appearing or contesting the case. c) That the assessee himself wrote an application to the Assl Registrar, 1TAT, Chandigarh on Pg. 7 (30.04.2018) and reminder letter on Pg. 8 (20.06.2018) that till date he has not received any notice of hearing for the fixation of the case. And to our utter shock vide letter no 06.07.2018 Pg 9 we were intimated that appeal was disposed off on 16.11.2016 and the Tribunal order was dispatched to the assesse at address mentioned in Form 36, which was never received by the assesee. However, this letter was delivered and received by us on 09.07.2018. d) Reliance is being placed on the decision of this Hon'ble Jurisdictional High Court in Wood Workers And Packing Case Works v. The State of Punjab And Anr., (1971) 28 STC 291 (P&H) wherein it has been held as under: "12. Thus, we are of the considered view that an appellate authority has no power under the Act to dismiss an appeal in default; that it must dispose of the appeal on merits irrespective of the fact whether the appellant or his counsel appeared on the date of hearing or not and that Rule 59(2) so far as it authorizes dismissal of appeal for default is inconsistent and repugnant to Section 20(6) of the Act. 13. Accordingly we allow this writ petition with costs and quash the impugned orders of the Presiding Officer, Sales Tax Tribunal, Punjab, dated 8 th April, 1968, and 6"' August, 1968, and send back the case to the Tribunal, respondent No.2, to decide the appeal of the petitioners in accordance with law. Counsel's fee Rs. 150." e) If the application is allowed and main appeal is restored in that case the interest of the Revenue will not be adversely affected rather the case would be decided on merits. 5. Prayer: In the aforesaid facts and circumstances of the case and in the interest of advancement of substantial justice it is being humbly prayed that Misc. Application may kindly be allowed and the main appeal may kindly be restored so that matter be adjudicated on merits.” 3. Both the parties were heard and the material available on record examined. 3 4. We find that there was reasonable cause for non-appearance on part of the assessee on the scheduled date of hearing resulting in passing of ex- parte order by the Coordinate Bench on account of non-prosecution without going into merits of the case. The order so passed by the Coordinate Bench is accordingly recalled and the matter is restored at the original number to hear both the parties on merits of the case. The next date of hearing is fixed for 11/10/2023 as informed to both the parties in the Open Court. Separate notice is dispensed with. 5. In the result, the misc. application is allowed in light of aforesaid directions. Order pronounced in the open Court on 24/08/2023 Sd/- Sd/- (AAKASH DEEP JAIN) ( VIKRAM SINGH YADAV) VICE PRESIDENT ACCOUNTANTMEMBER AG Date: 24/08/2023 Copy of the order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. The CIT(A) 5. DR, ITAT, CHANDIGARH 6. Guard File By order, Assistant Registrar